Citation Nr: 1454686
Decision Date: 12/11/14 Archive Date: 12/17/14
DOCKET NO. 06-03 594 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California
THE ISSUES
1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder ("PTSD").
2. Entitlement to an initial compensable rating for headaches to include entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU).
3. Entitlement to an earlier effective date for the award of service connection for headaches.
REPRESENTATION
Veteran represented by: Robert Chisholm, Attorney at Law
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
C. L. Krasinski, Counsel
INTRODUCTION
The Veteran served on active duty from July 1972 to May 1984.
This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a July 2004 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Columbia, South Carolina. Jurisdiction of the claims has since been transferred to the Oakland, California, RO.
In March 2009, the Veteran testified at a Board hearing. A transcript of the hearing has been associated with the Veteran's claims folder. Unfortunately, the judge who conducted that hearing has since retired from the Board. In August 2010, the Veteran was afforded the opportunity for a new hearing, but he declined.
The Board has previously considered this claim. In May 2009, November 2010, and August 2012, the Board remanded this claim for additional evidentiary development. In a September 2013 decision, the Board denied the Veteran's claim for service connection for a psychiatric disorder to include PTSD.
The Veteran appealed the Board's September 2013 decision to the United States Court of Appeals for Veteran's Claims (Court). In March 2014, the Veteran's attorney and VA filed a Joint Motion for Partial Remand (Joint Motion) to have the September 2013 Board decision vacated with respect to the issue of entitlement to service connection for a psychiatric disorder to include PTSD. The parties agreed that the Board's September 2013 denial of service connection for a cognitive disorder would be left undisturbed.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
REMAND
The premise of the March 2014 Joint Motion was that the Board had failed to consider the theory of aggravation in denying the Veteran's claim for an acquired psychiatric disability. The basis of this contention was that the Board had granted service connection for headaches in September 2013, and the Veteran had reported at a June 2004 VA psychiatric examination that his frequent headaches caused him to become very nervous.
The Joint Motion also indicated that the Board, on remand, should address whether an October 2012 VA examination report and its January and May 2013 addendums were based on an accurate history. The basis of this request was the indication by the examiner who authored the May 2013 addendum that there was no evidence to suggest that the Veteran exhibited signs of schizoaffective disorder or any other disorder either prior to service or during service.
The parties identified two pieces of evidence that they felt should be considered in evaluating the factual history used by the VA examiner. First, it was noted that on a December 1983 medical history survey should be reviewed. On this survey, the Veteran initially checked "yes" to indicate that he had then or had experienced previously "depression and excessive worry" and "nervous trouble of any sort." However, before completing the form, the Veteran changed his response to "no", initialing over the "yes" marks. Of note, the medical officer did not note any psychiatric problems at that time, but did specifically discuss the health conditions that the Veteran had reported experiencing. The Board as finder of fact concludes that this record supports the conclusion that the Veteran specifically denied having any psychiatric symptomatology such as nervousness or depression at separation and does not support a conclusion that the examiner's factual history was inaccurate.
The parties also noted that a September 2005 psychiatric assessment suggested that the Veteran had been physically violent towards others as a teenager (that is before he was in service) and he used to hurt people (such as striking his brother in the head with a shovel). On remand the examiner should consider this fact in rendering the requested medical opinions.
Thus, an opinion should be obtained as to whether a current psychiatric disorder either began during or was otherwise caused by the Veteran's military service, or whether a current psychiatric disorder was either caused or aggravated by the Veteran's service-connected headaches disorder.
Secondary service connection is granted where a service-connected disability causes or aggravates a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a).
A September 2013 rating decision granted service connection for headaches and assigned a zero percent rating from January 9, 2004. In April 2014, the Veteran filed a notice of disagreement as to the initial disability rating and effective date assigned to the headaches and raised the issue of TDIU. When a Veteran has filed a notice of disagreement and there is no statement of the case on file for that issue, the Board must remand, not refer, the issue to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, these issues are remanded for issuance of a statement of the case.
Accordingly, the case is REMANDED for the following action:
1. Return the Veteran's claims file to the examiner who conducted the October 2012 VA psychiatric examination and issued the May 2013 addendum opinion (or if he is no longer available, a suitable replacement). If an opinion cannot be provided without an examination, one should be provided. The examiner should provide the following medical opinions:
a) Did a current psychiatric disability pre-exist the Veteran's period of service. In providing this opinion, the examiner should consider the finding at a September 2005 psychiatric assessment that that the Veteran was physically violent towards others as a teenager and he used to hurt people.
b) Is it at least as likely as not (50 percent or greater)
that any currently diagnosed psychiatric disorder either began during or was otherwise caused by the Veteran's military service. The examiner should indicate whether a post-service event or incident caused any current psychiatric disorder.
c) Is it at least as likely as not (50 percent or greater)
that any current psychiatric disorder was caused or aggravated by the Veteran's service-connected headaches? "Aggravated" means that the psychiatric disability was permanently worsened beyond the natural progression of the disease by the headaches. In providing this opinion, the examiner should address the Veteran's statement at a June 2004 VA psychiatric examination that his frequent headaches caused him to become very nervous.
The examiner should clearly outline the rationale for any opinion expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why.
2. Issue a Statement of the Case for the issues of entitlement to an initial compensable rating for headaches to include entitlement to TDIU and entitlement to an earlier effective date for the award of service connection for headaches. Only if the Veteran perfects an appeal should the claim be certified to the Board.
3. After completing all indicated development, readjudicate all claims remaining on appeal. If any benefit sought on appeal remains denied, the RO should provide the Veteran and his representative with a fully responsive Supplemental Statement of the Case and afford them a reasonable opportunity for response.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).